Docket Nos. HC420099RO and HD420007RO
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
GERTZ PLAZA
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
------------------------------------X S.J.R. NO. 7285
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEALS OF DOCKET NOS. HC420099RO
and HD420007RO
DISTRICT RENT
ADMINISTRATOR'S DOCKET
TENTH CORNER B ASSOCIATES, NOS. GD420003UC
and GD420004UC
PETITIONER
------------------------------------X
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW,
FILED UNDER DOCKET NO. HC420099RO; AND ORDER AND OPINION REMANDING
PROCEEDING TO THE RENT ADMINISTRATOR, FILED UNDER DOCKET NO.
HD420007RO
On March 18, 1993, the above-named owner filed a petition for
administrative review, under Docket No. HC420099RO, of an order
issued on February 11, 1993 by the Rent Administrator concerning
various housing accommodations in the premises known as 343 East
10th Street, New York, New York. Furthermore, on April 8, 1993 the
above-named owner filed a petition for administrative review, under
Docket No. HD420007RO, of an order issued on March 5, 1993 by the
Rent Administrator concerning various housing accommodations in the
premises known as 174 Avenue B, New York, New York.
Subsequently, and after more than ninety days had elapsed from
the time it filed its petitions for administrative review, the
owner deemed the above-mentioned petitions as having been denied,
and sought judicial review in the Supreme Court of the State of New
York pursuant to Article 78 of the Civil Practice Law and Rules.
After considering the Article 78 petition, the Court issued
an order remitting the petitions for administrative review to the
Division of Housing and Community Renewal (D.H.C.R.) for further
consideration.
Since the petitions involve common questions of law and fact,
the Commissioner deems it appropriate to consolidate the
proceedings for disposition herein.
The Commissioner has reviewed all of the evidence in the
record and has carefully considered that portion of the record
relevant to the issues raised by the administrative appeals.
On April 6, 1992, the subject owner filed an application with
the rent agency seeking an order to exempt the subject premises
Docket Nos. HC420099RO and HD420007RO
known as 343 East 10th Street, New York, New York from rent
regulations, based on alleged work constituting an alleged
substantial rehabilitation of the apartments in the subject
premises occurring on or after January 1, 1974.
To its application the subject owner attached, among other
things, the following:
1) A copy of a "Work Permit" issued on November
20, 1990 by the New York City Department of
Buildings which described the work to be done
on the subject building as follows: "Repair,
patch, plaster & paint through the building.
Replace wall and floor titles in toilets";
2) A copy of a "Work Permit" issued on March 20,
1991 by the New York City Department of
Buildings which described the work to be done
on the subject building as follows: "Renovate
entire building, erect new partitions, new
flooring, ceiling and plumbing. New C. of O.
to be obtained as per plans filed herewith";
3) An alleged copy of the subject building's
Certificate of Occupancy (The Commissioner
notes that the above-mentioned item, submitted
by the subject owner, does not contain the
words "Certificate of Occupancy"; that in the
above-mentioned item it contains, among other
things, an alleged list of alteration plans to
the subject building, which notes that the
most recent alteration plan was allegedly
filed in June, 1969; and on the bottom of the
above-mentioned item it notes that legal
occupancy in the subject building commenced on
September 26, 1910), and
4) Cut-up copies of the alleged building plans.
On November 18, 1992, the Administrator mailed to the subject
owner a notice which requested the following information:
1) A detailed description of the subject premises
before and after the alleged alteration, which
"must include the work actually performed by
each contractor with proof of same (i.e.
contracts, invoice, etc.)";
2) A copy of the subject building's past and
present Certificate of Occupancy (C. of O.)
3) A copy of approved alteration plans and all
Docket Nos. HC420099RO and HD420007RO
required permits;
4) Proof of the cost of the alterations;
5) Proof that no tax abatement or governmental
loans were used to finance the alteration;
6) The subject building's rent roll "indicating
the names of each tenant, apartment number,
date of first occupancy, amount of rent being
paid, number of rooms and status of each
apartment," and
7) Any other pertinent information regarding the
status of the subject building.
On January 25, 1993, the Administrator mailed to the
subject owner a final notice requesting, among other things, the
following items:
1) The subject building's rent roll which is to
include the name of each current tenant; the
tenant's initial date of occupancy; the
monthly rent of each housing accommodation;
the number of rooms in each housing
accommodation, and the status of the housing
accommodation,
2) Documentation of alterations in the subject
premises, which should include copies of all
contracts, invoices, cancelled checks, and the
total cost of alterations;
3) "Copies of Certificates of Occupancy, past and
present, (legible), for the subject building,"
and
4) Approved altered building application issued
by the New York City Department of Buildings.
The above-mentioned notice stated that: "Failure to submit the
information/evidence in its entirety may result in a determination
based solely on the information presently in the file."
In its response, dated February 5, 1993, the subject owner
asserted, among other things, that it does not have to submit to
the Administrator the name of each tenant and their monthly rents;
that "no tax abatement was given for the subject premises," and
that the subject building should be exempt from rent regulations as
the alleged work constituted a substantial rehabilitation.
To its response the subject owner attached, among other
Docket Nos. HC420099RO and HD420007RO
things, the following:
1) A paper which is entitled "Rent Roll," which
lists the apartments on each floor, the number
of rooms and bedrooms in each apartment, lists
the date of initial occupancy for each
apartment as "post 1991 rehab," lists the
status of each apartment as occupied, and it
states that "the entire building was vacant
when the owner did its rehabilitation";
2) A copy of a "Certificate of Electrical
Inspection," dated June 10, 1992, issued by
the Department of Buildings;
3) Copies of job proposals prepared by various
contractors and invoices pertaining to the
alleged work to the subject building, and
4) A copy of a bill submitted to the landlord for
the service of filing" amendment" and
"controlled inspections" with the Department
of Buildings.
In the order under review herein, issued under Docket No.
GD420003UC, the Administrator determined that the "scope and extent
of work performed does not constitute a substantial rehabilitation
of the subject premises," and that the subject owner's application
should be denied. The Administrator directed the subject owner to
register each apartment in the subject building pursuant to the
applicable rent regulations.
In its petition the subject owner asserts, among other things,
that the subject owner "completed a gut rehabilitation on a
completely vacant building"; that the Administrator did not define
what constitutes a "substantial rehabilitation"; that the
Administrator did not state why the owner's work does not
constitute a "substantial rehabilitation" to the building; that the
owner "completely reconfigured the apartments, adding space that
was taken in from the hallways"; that, the owner asserts, in the
subject building new electrical and plumbing work were done, and
also work to the beans and floor support; that the rent agency
ignored the evidence submitted by the owner which shows "a gut
rehabilitation of a vacant building," and that, the owner asserts,
the Administrator's order should be reversed.
After careful consideration, the Commissioner finds that the
petition for administrative review, filed under Docket No.
HC420099RO, should be denied.
The Commissioner has reviewed all of the evidence submitted by
the subject owner in this proceeding pertaining to the alleged
Docket Nos. HC420099RO and HD420007RO
"substantial rehabilitation" of the subject building.
The Commissioner points out that the Administrator directed
the subject owner, in notices dated November 18, 1992 and January
25, 1993, to submit to the rent agency copies of the subject
building's past and present C. of O.
The Commissioner notes that the alleged C. of O. submitted by
the subject owner does not contain the words "Certificate of
Occupancy," nor does it contain any reference to alterations done
to the subject building on or after January 1, 1974.
The Commissioner points out that the aforementioned "Work
Permit," issued by the Department of Buildings on March 20, 1991,
directed the subject owner to obtain a new C. of O. pursuant to the
building plans filed by the subject owner.
Based on the evidence, the Commissioner finds that the subject
owner did not submit a copy of a C. of O. for the subject building
in connection with the work alleged by the subject owner in this
proceeding.
The Commissioner further finds that the alleged C. of O.
submitted by the owner, which may or may not be a copy of a
C. of O., has no probative value in this proceeding as the most
recent alteration plan that is listed in that alleged C. of O. was
filed in June, 1969, and that that alleged C. of O. does not
contain the words "Certificate of Occupancy."
As the subject owner did not submit an C. of O. for the
subject building in connection with the alleged work done to the
subject building, the Commissioner finds that it is not necessary
to determine whether the alleged work constituted a substantial
rehabilitation to the subject building as the subject owner has not
met its burden of proof in showing that the subject housing
accommodations are habitable; that the alleged work was done in
compliance with the applicable municipal regulations, and that the
alleged work was completed.
Accordingly, the Commissioner finds that the Administrator's
order issued under Docket No. GD420003UC should not be disturbed.
The Commissioner points out that the Administrator directed
the subject owner to submit a copy of an approved Altered Building
Application issued by the Department of Buildings. Based on the
evidence, the Commissioner finds that the subject owner did not
submit to the rent agency a copy of the above-mentioned Altered
Building Application.
The Commissioner further finds that the subject owner did not
submit a complete rent roll for the subject building. In the rent
roll submitted by the subject owner, the Commissioner points out
Docket Nos. HC420099RO and HD420007RO
that the subject owner did not provide the names of the subject
tenants, their monthly rents, and the dates of their initial
occupancy.
As the subject owner did not fully comply with the
aforementioned Administrator's notices which directed the owner to
submit additional evidence to the rent agency, the Commissioner
finds that the subject owner's petition, filed under Docket No.
HC420099RO, should be denied.
The record reflects that the subject owner did not provide the
names of the subject tenants to the rent agency in the proceeding
before the Administrator, and in its petition for administrative
review.
In order to ensure due process for all of the necessary
parties in this proceeding, the Commissioner finds that the subject
owner is required to provide the names of all of the subject
tenants so that the rent agency can properly serve all of the
tenants who might be affected by this proceeding, and to give all
of the subject tenants an opportunity to submit a response to the
issues raised by the owner.
Pursuant to Operational Bulletin 84-1, the Commissioner finds
that the subject owner is required to state the names and mailing
addresses of all parties affected by the Administrator's order
under review.
Even if the subject owner had met its burden of proof in
showing that the alleged work constituted a substantial
rehabilitation, the Commissioner is of the opinion that the owner's
application would have been dismissed for not providing the rent
agency the names of the necessary parties in this proceeding, i.e.,
the subject tenants.
On April 6, 1992, the subject owner filed an application with
the rent agency to exempt the subject premises known as 174 Avenue
B, New York, New York from rent regulations, based on alleged work
constituting an alleged substantial rehabilitation of the
apartments in the subject premises occurring on or January 1, 1974.
On February 19, 1993, the Administrator mailed a notice to the
subject owner directing it to submit to the rent agency, within
twenty days of the above-mentioned date, the following:
1) A detailed description of the subject premises
before and after the alleged alterations,
which must include the work actually performed
by each contractor and proof that such work
was done;
2) "A copy of past Certificate of Occupancy
Docket Nos. HC420099RO and HD420007RO
(prior to May 31, 1968)";
3) A copy of approved alteration plans, and all
required permits;
4) Proof of the cost of the alteration;
5) Proof that no tax abatement or governmental
loans were used to finance the alteration;
6) "Rent roll for the building indicating the
names of each tenant, apartment number, date
of first occupancy, amount of rent being paid,
number of rooms and status of each apartment,"
and
7) Any other pertinent information regarding the
status of the subject premises.
In the order under review herein, issued on March 5, 1993
under Docket No. GD420004UC, the Administrator determined that "the
scope and extent of work performed does not constitute a
substantial rehabilitation of the subject premises," and that the
subject owner's application should be denied. The Administrator
directed the subject owner to register each apartment in the
subject building pursuant to the applicable rent regulations.
In its petition, filed under Docket No. HD420007RO, the
subject owner alleges, among other things, that the Administrator's
notice which was mailed on February 19, 1993 provided that the
subject owner had twenty days from the above-mentioned date to
submit to the rent agency the additional information as requested
in the above-mentioned notice; that the Administrator's order under
review herein was issued on March 5, 1993; that the above-mentioned
order was issued six days prior to the time the subject owner had
to respond to the aforementioned Administrator's notice; that the
issuance of the Administrator's order prior to the time the owner
had to submit additional information was an irregularity in a vital
matter.
After careful consideration, the Commissioner finds that the
owner's petition, filed under Docket No. HD420007RO, should be
granted to the extent of remanding the proceeding to the Rent
Administrator for further processing.
The Commissioner points out that on February 19, 1993 the
Administrator mailed to the owner a notice directing it to submit
additional information to the rent agency within twenty days of the
above-mentioned date. The Commissioner further points out that the
Administrator issued the order under review herein, under Docket
No. GD420004UC, prior to the time the subject owner had to respond
to the above-mentioned notice.
Docket Nos. HC420099RO and HD420007RO
The Commissioner finds that the issuance of the
Administrator's order, issued under Docket No. GD420004UC, prior to
the time the subject owner had to respond to the aforementioned
Administrator's notice constituted an irregularity in a vital
matter; and that the Commissioner further finds that the subject
owner was denied due process as it was not given a sufficient
opportunity to submit to the rent agency the additional information
which was requested in the aforementioned Administrator's notice.
Accordingly, the Commissioner finds that the proceeding
pertaining to the premises known as 174 Avenue B, New York, New
York should be remanded to the Rent Administrator for further
processing; to give the subject owner an opportunity to submit to
the rent agency additional information as requested in the
aforementioned Administrator's notice, dated February 19, 1993, and
for the issuance of a new order determining the subject owner's
application to exempt the above-mentioned premises from rent
regulations.
Based on the record, the Commissioner finds that in the
proceeding under Docket No. GD420004UC, the Administrator
inadvertently did not direct the subject owner to submit a copy of
the subject building's current C. of O. to the rent agency. The
Commissioner is of the opinion that the Administrator should direct
the subject owner to submit a copy of the subject building's
current C. of O. to the rent agency in the remand proceeding.
If the subject owner does not submit a copy of the subject
building's current C. of O. which was issued by the Department of
Buildings in connection with the alleged work to the subject
building in this proceeding, the Commissioner is of the opinion
that the Administrator in the remand proceeding should issue an
order denying the subject owner's aforementioned application.
Based on the evidence, the Commissioner points out that the
subject owner did not provide the names of the subject tenants in
the proceeding before the Administrator, and in its petition for
administrative review.
To ensure due process, the Commissioner is of the opinion that
the Administrator should direct the subject owner to provide the
names of the subject tenants in the remand proceeding so that all
necessary parties have notice of the proceeding, and that all
necessary parties have an opportunity to respond to the issues
raised in the proceeding.
If the subject owner does not provide the names of the subject
tenants to the rent agency in the remand proceeding, the
Commissioner is of the opinion that the Administrator should
dismiss the subject owner's application.
Docket Nos. HC420099RO and HD420007RO
THEREFORE, in accordance with the Rent Stabilization Law and
Code, it is
ORDERED, that the subject owner's petition, filed under Docket
No. HC420099RO, be, and the same hereby is, denied, and that the
Administrator's order, issued under Docket No. GD420003UC, be, and
the same hereby is, affirmed; and it is
FURTHER ORDERED, that the subject owner's petition, filed
under Docket No. HD420007RO, be, and the same hereby is, granted to
the extent of remanding this proceeding to the Rent Administrator
for further processing in accordance with this order and opinion.
The Administrator's order issued under Docket No. GD420004UC
remains in full force and effect until a new order is issued upon
remand.
ISSUED:
Joseph A. D'Agosta
Deputy Commissioner